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Kordon v. Newport

Court of Appeals of Tennessee, Knoxville

April 24, 2015

RITA MCCARTT KORDON, ET AL.
v.
BEULAH NEWPORT, ET AL.

Session January 15, 2015

Appeal from the Chancery Court for Scott County No. 9765 Andrew Tillman, Chancellor

Rita McCartt Kordon and Rose McCartt Young, Robbins, Tennessee, pro se appellants.

Kevin C. Stevens and Briton S. Collins, Knoxville, Tennessee, for the appellees, Beulah Newport, Edith Joyce Bailey, Wilma Faye Hensley, Earl Herman Moore, Violet Ruth Simpson, and Kenneth Byrd.

D. Michael Swiney, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and Thomas R. Frierson, II, J., joined.

OPINION

D. MICHAEL SWINEY, JUDGE

Background

In September of 2007 Rita McCartt Kordon and Frank McCartt ("Plaintiffs")[1]sued Beulah Newport, Edith Joyce Bailey, Wilma Faye Hensley, Earl Herman Moore, Violet Ruth Simpson, Kenneth Byrd, and Leon Byrd[2] ("Defendants") alleging, in part, that Defendants had created a cloud on title to real property located in Scott County, Tennessee allegedly owned by Plaintiffs. Plaintiffs and Defendants own real property located in Scott County, Tennessee that shares a common boundary line. Plaintiffs' complaint stated, among other things, that the boundary line at issue had been set in the case of General Byrd v. Wilma McCartt Woodby ("Byrd v. Woodby"), wherein in 1977 this Court affirmed the 1975 judgment of the Chancery Court of Scott County as to the boundary line, and alleged that Defendants had recorded a survey in April of 2007 ("the Egerton Survey") that "encroaches upon the land owned by the Plaintiffs . . . ." Plaintiffs also alleged that "after the Order was entered in 1975 the Plaintiffs and their family have utilized all the property as previously claimed in the Chancery Court action 4400 in an open and notorious manner."

Defendants answered the complaint and alleged that the Egerton Survey "accurately reflects the subject boundary previously established in [Byrd v. Woodby]." Defendants also filed a counterclaim alleging, in part, that Plaintiffs had filed a survey ("the Crutchfield Survey") that improperly depicted the boundary established in Byrd v. Woodby. Defendants sought a declaration that the Egerton Survey correctly depicted the boundary established in Byrd v. Woodby and an order requiring removal of the Crutchfield Survey from the public record.

Defendants filed a motion for partial summary judgment. Plaintiffs responded to the motion for partial summary judgment alleging, in part, that although the boundary line was established by Byrd v. Woodby, it "was never properly set by the Court or a surveyor, " and that Plaintiffs "have been in open notorious control of the real property for over thirty years, " and "have paid taxes on the area of real property in conflict for more than thirty years." After a hearing on the motion for partial summary judgment the Trial Court entered its order on July 28, 2011 finding and holding:

1. The Court shall conduct the trial in this case on the sole issue of Plaintiffs' request for a declaratory judgment to strictly enforce and confirm the precise location of the boundary line between the adjoining real properties owned by the respective parties hereto that was conclusively established by the Final Decree of this Court in Case no. 4400 dated October 10, 1975, which was affirmed by the Tennessee Court of Appeals, Eastern Section on March 11, 1977. Byrd v. Woodby et al., Scott County, Tennessee Chancery Court Case No. 4400 (Oct. 10, 1975), aff'd Tenn. Ct. App. (Mar. 11, 1977).
2. Plaintiffs' former counsel, Johnny V. Dunaway, previously sent correspondence to Defendants' former counsel, Timothy P. Webb, dated March 3, 2000 (the "Dunaway Correspondence") . . . wherein Mr. Dunaway expressly stated to Mr. Webb that "My clients [Plaintiffs] are not now claiming the 7 acres, although they originally thought they owned it and had requested Crutchfield to perform a survey of the 7 acres."
3. Based upon the express statements of Mr. Dunaway in the Dunaway Correspondence, Plaintiffs shall not be allowed to assert a claim in this case for adverse possession of the subject 7 acres unless they can introduce documentary evidence that Mr. Dunaway expressly retracted his statement in the Dunaway Correspondence, which conveyed to Defendants that his clients were not claiming the subject 7 acres, by sending written notice to Mr. Webb of his retraction within a reasonable time after making such statement. If Plaintiffs do not introduce such documentary evidence on or before August 13, 2011, then Plaintiffs' claim for adverse possession and any additional claims asserted by Plaintiffs, other that [sic] their claim for declaratory judgment, shall be dismissed.
On July 3, 2013 Defendants filed a motion for entry of a final judgment alleging, among other things, that Plaintiffs' suit should be dismissed for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02. After a hearing, the Trial Court ...

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